The Issue The issue is whether Petitioner is entitled to relocation benefits from Respondent after receipt of settlement proceeds, pursuant to a final judgment entered following Petitioner's acceptance of an offer of judgment made during the condemnation action previously prosecuted by Respondent.
Findings Of Fact The parties previously litigated a condemnation action in which Respondent sought to terminate Petitioner's leasehold interest in certain real property in order to construct a federal-assisted road project. As between the two parties, the condemnation action ended in a settlement and stipulated final judgment. In an Offer of Judgment dated May 2, 1997, Respondent offered $30,000 "to settle all claims with said Respondents, exclusive of attorneys fees and costs . . .." By letter dated June 6, 1997, Petitioner notified Respondent that it was accepting the offer of judgment, "which was in the amount of $30,000 for business damages." The parties stipulated to the entry of a Final Judgment pursuant to their settlement. By Final Judgment dated June 19, 1997, the court entered final judgment, stating that the payment of $30,000 was "in full payment for any and all business damages for Parcels 136 and 736 herein taken, and for all other damages of any nature, including interest " Paragraph 15 of Petitioner's Answer in Eminent Domain, served December 6, 1994, states that Petitioner "will suffer moving expenses, relocation costs[,] loss of personal property and other expenditures not known at this time, for all of which it seeks recovery from the [Respondent]." In providing Respondent with information to assess the settlement value of the condemnation case, Petitioner included claims that are properly classified as relocation expenses. In a letter from counsel for Petitioner to counsel for Respondent dated April 1, 1997, Petitioner provided "our business damage report . . .." The total claimed was $406,225, which included numerous costs of relocation. Respondent maintains a manual entitled "Relocation Assistance Program" ("Manual"). The Manual contemplates that claims for relocation assistance are separate from takings claims. For example, Manual Section 9.2.18 provides, for owners, that relocation claims must be made within 18 months from the latter of the date of displacement or the date of final payment for acquisition of the property. Manual Section 9.2.22 contemplates the possible inclusion of relocation claims within administrative or legal proceedings. Additionally, Manual Section 9.2.24 provides for a formal administrative hearing of unresolved disputes concerning relocation claims. Manual Section 9.2.22 provides that relocation benefits included in a settlement must be accompanied by certain documentation. Manual Section 9.2.22.2 provides that, absent the required documentation, a specific individual within Respondent must grant an exemption. The record does not indicate that Respondent complied with either of these alternative requirements in settling the condemnation action.
Recommendation It is RECOMMENDED that the Department of Transportation enter a final order dismissing Petitioner's claim for monetary relocation assistance. DONE AND ENTERED this 16th day of June, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 2000. COPIES FURNISHED: Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 James C. Myers Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Vanessa Thomas Forman, Krehl & Montgomery Post Office Box 159 Ocala, Florida 34478 Kelly A. Bennett Assistant General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue The issues in each case are whether, pursuant to Sections 489.141 and 489.143, Florida Statutes (2003), a claimant is entitled to payment from the Construction Industries Recovery Fund, and, if so, whether, pursuant to Section 489.143(7), Florida Statutes (2003), Respondent may automatically suspend the residential contractor's license of Petitioner until Petitioner reimburses Respondent for the paid claim.
Findings Of Fact Petitioner is licensed as a certified residential contractor, holding license number CRC 013599. Respondent first issued a residential contractor's license to Petitioner in 1978, and Petitioner has been continually licensed since that time. Petitioner has never been disciplined by Respondent or any local governmental agency. On January 29, 2004, Respondent transmitted to the Division of Administrative Hearings seven files containing administrative complaints alleging disciplinary breaches against Petitioner for many of the transactions covered in the nine subject cases. These seven new cases have not yet been heard, and Respondent has not yet entered any restitution orders against Petitioner. In the past, Petitioner has placed his residential contractor's license with various corporations to qualify them to perform residential construction. In February 1999, Petitioner met with Lori Thomson, president of Thomson Homes, Inc., to discuss placing his license with her residential construction company. Now inactive, Thomson Homes, Inc., had been in the residential construction business since at least 1994, operating out of an office in Palm Beach County, which is also the location of all but one of the residential construction jobs that are the subject of these cases. Since 1994, Thomson Homes, Inc., had used the general contractor's license of Ms. Thomson's husband, Steven Thomson, to qualify to perform residential construction. During the time that his license qualified Thomson Homes, Inc., Mr. Thomson believed that he and his wife owned the corporation equally and that she served as the president and he served as the vice-president. In the summer of 1998, Mr. Thomson filed for divorce from Ms. Thomson. In February 1999, Ms. Thomson fired Mr. Thomson from Thomson Homes, Inc. Shortly thereafter, Mr. Thomson learned that Ms. Thomson had caused all of the stock to be issued to her when the corporation was formed, and that she had assumed all of the officer and director positions. In early March 1999, Mr. Thomson cancelled all of the building permits that he had obtained on behalf of Thomson Homes, Inc., and withdrew his general contractor's license from Ms. Thomson's corporation, effective March 20, 1999. When Mr. Thomson withdrew his license from Thomson Homes, Inc., it was in the process of building or preparing to build about ten homes. At no time during Petitioner's discussions with Ms. Thomson was he aware that Thomson Homes, Inc., was actively involved in construction. Eventually, Ms. Thomson and Petitioner agreed that Petitioner would place his residential contractor's license with Thomson Homes, Inc., and would supervise the corporation's construction activities. In return, Thomson Homes, Inc., would pay Petitioner $500 weekly and 35 percent of the profits. After filing the necessary documentation in April 1999, Petitioner qualified Thomson Homes, Inc. effective April 22 or 26, 1999. Petitioner advised Ms. Thomson that he had other work to do for another month, so he could not start with Thomson Homes, Inc. immediately. Ms. Thomson told him that she had to get financing arranged for several signed contracts and did not have any construction taking place at the time. The record is unclear whether this delay took place after the initial agreement between Petitioner and Ms. Thomson or after Petitioner formally placed his license with Thomson Homes, Inc. However, in either event, from the date that Petitioner formally placed his license with Thomson Homes, Inc., he never had a substantive conversation with Ms. Thomson about any construction activities of Thomson Homes, Inc. Not hearing from Ms. Thomson, Petitioner eventually called her to learn when he would start work. At first, Ms. Thomson took Petitioner's calls and kept explaining that the financing paperwork had been delayed. She promised to call Petitioner when construction was ready to proceed. However, Ms. Thomson never contacted Petitioner, and she later stopped taking or returning Petitioner's calls. In early August 1999, Petitioner called Thomson Homes, Inc., and learned that its telephone had been disconnected. He visited the office of Thomson Homes, Inc., but found it closed and the premises vacated. In fact, Thomson Homes, Inc., discontinued business on or about August 1, 1999. Between the date that Petitioner had qualified Thomson Homes and the point at which Thomson Homes ceased doing business, Thomson Homes, Inc., had entered into construction contracts, taken deposits and draws on construction loans, and performed residential construction--all unknown to Petitioner. Also unknown to Petitioner was the fact that Thomson Homes, Inc., had failed to perform its obligations under many, if not all, of its construction contracts during that period. The record is unclear when Petitioner withdrew his license from Thomson Homes, Inc. Petitioner sent Respondent a letter on August 30, 1999, advising of the withdrawal of his license from Thomson Homes, Inc. Later advised that he needed to file another form to effect the withdrawal, Petitioner did so in March 2000. The difference is not important in these cases. At no time did Petitioner receive any money from Thomson Homes, Inc., or any of the claimants who contracted with Thomson Homes, Inc. At no time did Petitioner enter into any contracts with any of the claimants. Only after Thomson Homes, Inc., had taken the claimants' money and abandoned work or failed to commence work did Petitioner learn that Thomson Homes, Inc., had done construction business under his license. DOAH Case No. 03-3540 involves the claim of Sandra Harvey. Ms. Harvey entered into a construction agreement with Thomson Homes, Inc., on September 9, 1998. Pursuant to the agreement, Ms. Harvey agreed to pay Thomson Homes, Inc., $25,500 for a lot and $115,260 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour. After pouring the slab, constructing the shell, and completing the rough plumbing, air conditioning, and electrical, Thomson Homes, Inc., stopped work on Ms. Harvey's home in early 1999. Ms. Harvey learned of the problem when Mr. Thomson called her in early 1999 and said that he could not finish the home because Ms. Thomson had taken over the business. This call probably took place no later than late March 1999, when Mr. Thomas withdrew as the qualifier for Thomson Homes, Inc. The record does not reveal the extent of payments from Ms. Harvey or her lender or the extent of completed work at the time that Thomson Homes, Inc., abandoned the job. Although the complaint is not part of this record, Ms. Harvey commenced a legal action against Thomson Homes, Inc., but not Petitioner. She obtained a default final summary judgment against Thomson Homes, Inc., on March 30, 2001, for a total sum of $46,267.32, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: Subsequent to entering into the above referenced contract, Defendant breached its contract by accepting Plaintiff's deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and/or materialmen for their labor, services and material provided. As a result of Defendant abandoning the project, Plaintiff was compelled to retain a new contractor to complete her home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, the misapplication of construction funds and financial mismanagement Plaintiff has been forced to borrow additional funds from the construction lender. On May 3, 2001, Ms. Harvey filed a claim with the Construction Industries Recovery Fund (Recovery Fund). In response to a question asking if she had made a diligent effort to collect payment from the contractor, Ms. Harvey answered "yes," explaining she had "filed lawsuit." Ms. Harvey probably filed her claim within two years of when Thomson Homes, Inc., abandoned her job. By the end of March 1999, Mr. Thomson informed Ms. Harvey that his wife had fired him, so he could not work on her home anymore. A change in qualifier does not mean that Thomson Homes, Inc., would necessarily abandon the job, but, as noted in the Conclusions of Law, abandonment presumptively arises upon the expiration of 90 days without work. No work took place on Ms. Harvey's home after Mr. Thomson withdrew as qualifier, so presumptive abandonment took place by the end of June 1999--after May 3, 1999, which is two years prior to the date on which Ms. Harvey filed her claim. By letter dated June 5, 2001, from James Brogan of WEI Consulting Group to Ms. Harvey, Mr. Brogan states that he had investigated the assets of Thomson Homes, Inc. Mr. Brogan found no bankruptcy filing by Thomson Homes, Inc., in Bankruptcy Court in the Southern District of Florida. Thomson Homes, Inc., was a party to 282 legal actions and owed tangible personal property taxes on furniture in a model home, but the furniture was no longer available. On February 28, 2003, Respondent issued an Order approving Ms. Harvey's claim of $25,000 against the Recovery Fund and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that Ms. Harvey is the Petitioner, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On March 17, 2003, Petitioner filed a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on Ms. Harvey and Respondent, contests the payment to Ms. Harvey and the automatic suspension of Petitioner's license. The petition contests the payment of Ms. Harvey's claim because she had made insufficient efforts to satisfy the judgment; she had failed to submit all required exhibits with her claim; her judgment is against Thomson Homes, Inc., and not Petitioner; her judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. Additionally, the petition contests the automatic suspension because the payment to Ms. Harvey is not authorized, her claim is incomplete, and her judgment is not against Petitioner. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3541 involves the claim of John and Kathleen Whitesides. The Whitesides, who lived at the time in Juno Beach, Florida, entered into a construction contract with Thomson Homes, Inc., on February 7, 1999. Pursuant to the agreement, the Whitesides agreed to pay Thomson Homes, Inc., $154,094 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour. After the Whitesides paid Thomson Homes, Inc., $5000 and secured a construction loan, Thomson Homes, Inc., never commenced construction. In a complaint filed April 3, 2000, the Whitesides commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to any construction," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction. The Whitesides obtained a default final judgment against Thomson Homes, Inc., on December 21, 2000, for a total sum of $20,146.67, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: "Defendant is in breach of the Contract dated February 7, 1999, and has received unjust enrichment from Defendant's failure to fulfill the terms of the Contract to build a home for Plaintiffs." On August 9, 2001, David Tassell, the Whitesides' attorney in the circuit court action against Thomson Homes, Inc., stated, in an acknowledged statement, that he had performed "numerous" real property searches in Palm Beach and Martin counties' public records and determined that Thomas Homes, Inc., "owns no real property in Martin County." The omission of Palm Beach County in the statement is unexplained. Mr. Tassell's statement adds that he has retained a private investigator, who confirmed that Thomson Homes, Inc., owns no boats, planes, or automobiles. On August 10, 2001, the Whitesides filed a claim with the Recovery Fund. In response to a question asking if they had made a diligent effort to collect payment from the contractor, the Whitesides answered "yes," but did not supply an explanation in the following blank. The completed questionnaire accompanying the claim states that the Whitesides discovered the violation in September 1999 and that it occurred in July to August 1999. On September 17, 2002, Respondent issued an Order approving the Whitesides' claim of $18,526.67 against the Recovery Fund and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that the Whitesides are the Petitioners, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. The Whitesides probably filed their claim within two years of when they reasonably should have discovered that Thomson Homes, Inc., had wrongfully failed to commence construction, as is required for reasons set forth in the Conclusions of Law. As noted in the Conclusions of Law, presumptive abandonment arose when Thomson Homes, Inc., after entering the contract, performed no work for 90 days. Six months elapsed from the signing of the contract to the date that is two years prior to the filing of the claim. Although the record is not well-developed on the point, it is more likely than not that due diligence did not require that the Whitesides discover the abandonment within the first 90 days after it had presumptively arisen. The Whitesides' judgment is probably based on a violation of Section 489.129(1)(g), (j), or (k), Florida Statutes, as is required for reasons set forth in the Conclusions of Law. Although the record is not well-developed on this point either, it is more likely than not that the judgment is based on Thomson Homes' abandonment after entering into the contract. The judgment does not state this basis explicitly, but the complaint, on which the judgment is based, alleges abandonment. On December 23, 2002, Petitioner filed a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on Respondent and the Whitesides' attorney in the circuit court action against Thomson Homes, Inc., contests the payment to the Whitesides and the automatic suspension of Petitioner's license. The petition contests the payment of the Whitesides' claim because they did not file certified copies of the final judgment and levy and execution documents and their judgment did not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes. Additionally, the petition contests the automatic suspension because Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes; Petitioner received no notice of the hearing that resulted in the Order to pay the Whitesides and suspend Petitioner's license; the Whitesides' claim is incomplete; and the Whitesides' judgment is not against Petitioner. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3542 involves the claim of Richard and Kathleen Beltz. The Beltzes entered into a construction contract with Thomson Homes, Inc., on July 13, 1999. Pursuant to the agreement, the Beltzes agreed to pay Thomson Homes, Inc., $35,500 for a lot and $140,500 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour. After the Beltzes paid Thomson Homes, Inc., $17,283.70, Thomson Homes, Inc., never appeared at the closing, which had been scheduled for August 10, 1999. Nor did Thomson Homes, Inc., ever commence construction. The record does not disclose the extent, if any, to which Thomson Homes, Inc., completed construction. The Beltzes' discovery of Thomson Homes' failure to commence construction was hampered by the fact that they resided in California at the time. However, the Beltzes had obviously discovered the wrongful acts and omissions of Thomson Homes, Inc., by September 29, 1999, when they sent a letter to Petitioner demanding that he return the money that they had paid Thomson Homes, Inc. On October 19, 1999, the Beltzes signed a claim under the Recovery Fund, but the record contains no indication when the claim was filed. The completed questionnaire attached to the claim does not ask if the claimants had made a diligent effort to collect payment from the contractor. For reasons set forth in the Conclusions of Law, a claim must follow a judgment, so, the Beltzes could not file a valid claim until they had obtained a judgment. Two years from September 29, 1999, at which point the Beltzes obviously knew of a violation, requires that they file the claim, on an already- secured judgment, prior to September 29, 2001. In a complaint filed February 4, 2002, the Beltzes commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to any construction" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiffs [sic] residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen. The Beltzes obtained a default final summary judgment against Thomson Homes, Inc., on May 22, 2002, for a total sum of $23,280.20, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: Subsequent to entering into the above referenced contract, Defendant performed some work on the project. However, Defendant breached its contract by accepting deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and materialmen for their labor, services and material provided. As a result of Defendant failing to pay Lienors who provided labor, service and materials to Plaintiffs [sic] real property, Construction Liens were recorded against same, which Plaintiffs had to satisfy. As a result of Defendant abandoning the project, Plaintiffs were compelled to retain a new contractor to complete their home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, failing to pay Lienors, the misapplication of construction funds and financial mismanagement, Plaintiffs were forced to borrow additional funds from their construction lender. By unacknowledged statement dated August 23, 2002, Ms. Beltz declared that someone at the Florida Department of State advised her that Thomson Homes, Inc., was administratively dissolved on September 24, 1999. She also declared that she had found on the internet two pieces of real property owned by Thomson Homes, Inc., but they had been transferred within the past year. Ms. Beltz stated that she searched the database of the "Department of Motor Vehicles in Palm Beach County" in May 2000 and found no vehicles or boats registered to Thomson Homes, Inc. Lastly, she reported that she contacted the "Federal Aviation Association" at an unspecified time and found no "airplanes" registered to Thomson Homes, Inc. On November 26, 2002, Respondent issued an Order approving the Beltzes' claim of $17,222.78 against the Recovery Fund and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that the Beltzes are the Petitioners, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On December 27, 2002, Petitioner filed a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on the Beltzes and Respondent, contests the payment to the Beltzes and the automatic suspension of Petitioner's license. The petition contests the payment of the Beltzes' claim because they did not submit all of the necessary exhibits with their claim; their judgment is against Thomson Homes, Inc., and not Petitioner; and their judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes. Additionally, the petition contests the automatic suspension because Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes; the Beltzes' claim is incomplete; and the Beltzes' judgment is not against Petitioner. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3543 involves the claim of Keith and Karen Deyo. The Deyos entered into a construction contract with Thomson Homes, Inc., on October 31, 1998. Pursuant to the agreement, the Deyos agreed to pay Thomson Homes, Inc., $25,500 for a lot and $123,400 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour. Although the Deyos clearly suffered damages from the acts and omissions of Thomson Homes, Inc., the record does not disclose how much they paid the company, how much they had to pay unpaid suppliers and laborers, and how much construction the company completed before abandoning the job. Thomson Homes, Inc., began construction on the Deyos' home about 30-45 days after the parties signed the contract, but all work stopped in July 1999. In an undated complaint, the Deyos commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment] of the project prior to completion" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiffs [sic] residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen. The Deyos obtained a final summary judgment against Thomson Homes, Inc., on March 15, 2000, for a total sum of $55,458.64, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: Subsequent to entering into the above referenced contract, Defendant partially performed work under the Contract. However, it breached its contract by accepting deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and materialmen for their labor, services and material provided. As a result of Defendant failing to pay lienors who provided labor, services and materials to Plaintiffs [sic] residence, construction liens were recorded against same, which Plaintiffs had to satisfy. As a result of Defendant abandoning the project, Plaintiffs were compelled to retain a new contractor to complete their home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, failing to pay lienor's [sic], the misapplication of construction funds and financial mismanagement Plaintiffs have been forced to borrow additional funds from their construction lender. On April 27, 2000, the Deyos signed a claim under the Recovery Fund, but the record contains no indication when the claim was filed. A cover letter dated May 8, 2000, suggests that the Deyos mailed their claim a couple of weeks after signing it, so it was probably filed in mid-May 2000, although their questionnaire bears a revision date of November 2001, which would be beyond two years after the violation. In the questionnaire, the Deyos did not respond to the question asking if they had made a diligent effort to collect payment from the contractor. By an undated and unacknowledged statement, Mr. Deyo declared that someone at the Florida Department of State advised him that Thomson Homes, Inc., was administratively dissolved on September 24, 1999. He also declared that he had found on the internet two pieces of real property owned by Thomson Homes, Inc., but they had been transferred within the past year. Mr. Deyo stated that he searched the database of the "department of motor vehicles in Palm Beach County" in on April 14, 2000, and found no motor vehicles or boats registered to Thomson Homes, Inc. Lastly, he reported that he contacted the "Federal Aviation Association" on April 21, 2000, and found no "airplanes" registered to Thomson Homes, Inc. On January 22, 2003, Respondent issued an Order acknowledging the Deyos' claim of $55,458.64, approving the payment of the statutory limit of $25,000 against the Recovery Fund, and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that Mr. Deyo is the Petitioner, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On February 3, 2003, Petitioner filed a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on Respondent and the Deyos' attorney who represented them in the action against Thomson Homes, Inc., contests the payment to the Deyos and the automatic suspension of Petitioner's license. The petition contests the payment of the Deyos' claim and suspension of Petitioner's license because Petitioner did not receive notice of the hearing at which Respondent entered the Order; the Deyos did not satisfy all requirements for payment from the Recovery Fund; their claim was not accompanied by certified copies of the levy and execution documents; their judgment is against Thomson Homes, Inc., and not Petitioner; their judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3544 involves the claim of Sylvia Reinhardt. Ms. Reinhardt entered into a construction contract with Thomson Homes, Inc., on October 14, 1998. Pursuant to the agreement, Ms. Reinhardt agreed to pay Thomson Homes, Inc., $45,000 for a lot and $147,150 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour. After Ms. Reinhardt paid Thomson Homes, Inc., $144,769, directly and indirectly, by way of her construction lender, the house was little more than half complete when Thomson Homes, Inc., abandoned the job. Thomson Homes also failed to pay various suppliers that filed liens, so Ms. Reinhardt had to pay $8550.41 to RTS Roofing, $882 to Palm Beach Garage Door, and $3421.32 to Woodworks, Inc. In an undated complaint filed in 1999 (actual date illegible), Ms. Reinhardt commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to completion" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiff's residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen. Ms. Reinhardt obtained a final summary judgment against Thomson Homes, Inc., on March 28, 2000, for a total sum of $61,471.15, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: Subsequent to entering into the above referenced contract, Defendant performed work under the Contract. However, it breached its contract by accepting deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and materialmen for their labor, services and materials provided. As a result of Defendant failing to pay lienors who provided labor, services and materials for the construction of Plaintiff's residence, construction liens were recorded against same, which Plaintiff had to satisfy. As a result of Defendant abandoning the project, Plaintiff was compelled to retain a new contractor to complete their [sic] home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, failing to pay lienor's [sic], the misapplication of construction funds and financial mismanagement Plaintiff has been forced to borrow additional funds from her construction lender. On April 17, 2000, Ms. Reinhardt filed a claim with the Recovery Fund. In response to a question asking if she had made a diligent effort to collect payment from the contractor, Ms. Reinhardt answered "yes" and explained: "Telephone calls were unanswered. Certified mail requesting response were [sic] never answered. Our attorney made written and personal contact with the owner and there was no intention to pay." The claim states that the violation took place in July 1999. By acknowledged statement dated July 21, 2000, Ms. Reinhardt declared that she had completed a "reasonable search and inquiry" and had not found any property or assets against which to satisfy her judgment. Ms. Reinhardt stated that someone at the Florida Department of State advised her that Thomson Homes, Inc., was administratively dissolved on September 24, 1999. She also declared that she had found one parcel of property owned by Thomson Homes, Inc., and valued at $115,387, but this had been sold to "Joan Thomson" on February 1, 2000. Ms. Reinhardt stated that she had found tangible personal property worth $5000. She added that she had not found any motor vehicles registered with the Department of Highway Safety and Motor Vehicles, nor had she found anything registered with the "FAA." On November 26, 2002, Respondent issued an Order acknowledging Ms. Reinhardt's claim of $58,661.44, approving the payment of the statutory limit of $25,000 against the Recovery Fund, and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that Ms. Reinhardt is the Petitioner, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On December 24, 2002, Petitioner served a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on Ms. Reinhardt and Respondent, contests the payment to Ms. Reinhardt and the automatic suspension of Petitioner's license. The petition contests the payment of Ms. Reinhardt's claim and suspension of Petitioner's license because Ms. Reinhardt did not submit certified copies of the levy and execution documents; her judgment is against Thomson Homes, Inc., and not Petitioner; her judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3545 involves the claim of Louis and Ann Mahoney. The Mahoneys entered into a construction contract with Thomson Homes, Inc., on June 28, 1999, for the construction of a home in Martin County. Pursuant to the agreement, the Mahoneys agreed to pay Thomson Homes, Inc., $32,000 for a lot and $149,000 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 150 days from the date of slab pour. After the Mahoneys paid Thomson Homes, Inc., $14,500, directly and indirectly, by way of their construction lender, they suffered damages due to the acts and omissions of Thomson Homes, Inc., although, again, the record does not describe specifically how Thomson Homes caused them damage. In an undated complaint that bears no filing date, the Mahoneys commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to completion" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiffs [sic] residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen. The Mahoneys obtained a final summary judgment against Thomson Homes, Inc., on April 13, 2000, for a total sum of $43,084.49, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: Subsequent to entering into the above referenced contract, Defendant breached its contract by accepting Plaintiffs' deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and/or materialmen for their labor, and/or services provided. As a result of Defendant failing to pay lienor's [sic] who provided labor, services and materials for the construction of Plaintiffs [sic] residence, a construction lien was recorded against Plaintiffs' property, which Plaintiffs will have to satisfy. As a result of Defendant abandoning the project, Plaintiffs were compelled to retain a new contractor to complete their home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, failing to pay lienor's [sic], the misapplication of construction funds and financial mismanagement Plaintiffs have been forced to borrow additional funds from their construction lender. On April 30, 2000, the Mahoneys signed a claim under the Recovery Fund. Although the claim form bears no filing date, the completed questionnaire attached to the claim was filed on May 3, 2000, so that is the likely filing date of the claim. In response to a question asking if they had made a diligent effort to collect payment from the contractor, the Mahoneys answered "yes" and explained: "This is explained in General Allegations, enclosed with this paperwork." Evidently, the reference is to a copy of the circuit court complaint. By acknowledged statement dated April 8, 2002, Mr. Mahoney declared that he had completed a "reasonable search and inquiry" and had not found any property or assets against which to satisfy his judgment. Mr. Mahoney stated that someone at the Florida Department of State advised him that Thomson Homes, Inc., was administratively dissolved on September 24, 1999. He also declared that an internet search had disclosed no property owned by Thomson Homes, Inc. Mr. Mahoney stated that the "department of motor vehicles in Palm Beach County" found no motor vehicles or boats registered to Thomson Homes, Inc., and that the "FAA" had found nothing registered to Thomson Homes, Inc. On February 28, 2003, Respondent issued an Order acknowledging the Mahoneys' claim of $38,185, approving the payment of the statutory limit of $25,000 against the Recovery Fund, and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that the Mr. Mahoney is the Petitioner, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On March 17, 2003, Petitioner served a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on the Mahoneys and Respondent, contests the payment to the Mahoneys and the automatic suspension of Petitioner's license. The petition contests the payment of the Mahoneys' claim and suspension of Petitioner's license because they did not submit all of the required exhibits; their judgment is against Thomson Homes, Inc., and not Petitioner; their judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3546 involves the claim of Dennis and Carolyn DeStefanis. The DeStefanises entered into a construction contract with Thomson Homes, Inc., on April 7, 1999. Pursuant to the agreement, the DeStefanises agreed to pay Thomson Homes, Inc., $137,455 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 150 days from the date of slab pour. After the DeStefanises paid Thomson Homes, Inc., $15,765, directly and indirectly, by way of their construction lender, Thomson Homes, Inc. never did any work, except to contract with a surveyor, who, unpaid, filed a claim of lien against the DeStefanises's lot. In an undated complaint bearing no filing date, the DeStefanises commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to completion" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiffs [sic] residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen. The DeStefanises obtained a final summary judgment against Thomson Homes, Inc., on March 15, 2000, for a total sum of $36,701.87, including attorneys' fees and costs. The judgment states, in part: Subsequent to entering . . . into the above referenced contract, Defendant, [sic] breached its contract by accepting Plaintiffs [sic] deposits and construction loan disbursements and thereafter abandoning the project. [sic] As a result of Defendant abandoning the project, Plaintiffs were compelled to retain a new contractor to complete their home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, the misapplication of construction funds and financial mismanagement Plaintiffs have been forced to borrow additional funds from their construction lender. On April 19, 2000, the DeStefanises filed a claim with the Recovery Fund. In response to a question asking if they had made a diligent effort to collect payment from the contractor, the DeStefanises answered "yes" and explained: "Went to DBPR Investigative Services, hired Attorney Barry W. Taylor [attorney in circuit court action], got Final Summary Judgment against Thomson Homes, Inc." On March 20, 2003, Respondent issued an Order acknowledging the DeStefanises' claim of $34,965.52, approving the payment of $15,765 against the Recovery Fund, and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that the DeStefanises are the Petitioners, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On April 7, 2003, Petitioner filed a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on the DeStefanises and Respondent, contests the payment to the DeStefanises and the automatic suspension of Petitioner's license. The petition contests the payment of the DeStefanises' claim and suspension of Petitioner's license because they did not submit all of the required exhibits; their judgment is against Thomson Homes, Inc., and not Petitioner; their judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. The petition contests the suspension of Petitioner's license on the additional ground that he was not the qualifier for Thomson Homes, Inc., when it and the DeStefanises entered into the construction contract. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3547 involves the claim of James and Donna Barr. The Barrs entered into a construction contract with Thomson Homes, Inc., on September 12, 1998. Pursuant to the agreement, the Barrs agreed to pay Thomson Homes, Inc., $30,000 for a lot and $140,900 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour. The Barrs paid Thomson Homes, Inc., $8500 in the form of a down payment. They or their construction lender paid Thomson Homes, Inc., considerably more money and suffered the imposition of claims of lien by unpaid subcontractors and suppliers, but, after negotiating with the bank, emerged from the transaction having lost only the $8500 down payment. Thomson Homes, Inc., obtained permits in April 1999 and started construction in May 1999. Before abandoning the job, Thomson Homes, Inc., worked on the home in May, June, and July of 1999. The Barrs and their lender did not make additional payments after the Barrs found the Thomson Homes, Inc., office empty on August 1, 1999. In a complaint filed October 6, 1999, the Barrs commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to completion" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiffs [sic] residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen. The Barrs obtained a final summary judgment against Thomson Homes, Inc., on May 8, 2000, for a total sum of $45,435.62, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: Subsequent to entering into the above referenced contract, partially performed work under the Contract. However, Defendant breached the contract by accepting Plaintiffs [sic] deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and/or materialmen for their labor services and materials provided. As a result of Defendant failing to pay lienors who provided labor, services and materials for the construction of Plaintiffs [sic] residence, construction liens were recorded against same, which Plaintiffs will have to satisfy. As a result of Defendant abandoning the project, Plaintiffs will be compelled to retain a new contractor to complete their home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, failing to pay lienors, the misapplication of construction funds and financial mismanagement Plaintiffs will be forced to borrow additional funds from their construction lender. On June 2, 2000, the Barrs filed a claim under the Recovery Fund. In response to a question asking if they had made a diligent effort to collect payment from the contractor, the Barrs answered "yes" and explained: "I have looked into the assets of Thomson Homes Inc. and they do not have any. My affidavit is attached." The completed questionnaire states that the Barrs discovered the violation on August 11, 1999. They therefore failed to file their claim within two years of the discovery of the violation. By acknowledged statement dated May 23, 2000, Ms. Barr declared that she had completed a "reasonable search and inquiry" and had not found any property or assets against which to satisfy her judgment. Ms. Barr stated that someone at the Florida Department of State advised her that Thomson Homes, Inc., was administratively dissolved on September 24, 1999. She also declared she had found no property owned by Thomson Homes, Inc., in Palm Beach County. Ms. Barr stated that the Department of Highway Safety and Motor Vehicles found no motor vehicles or boats registered to Thomson Homes, Inc., and that the internet site of the "FAA" had revealed nothing registered to Thomson Homes, Inc. On November 26, 2002, Respondent issued an Order approving the payment of the Barrs' claim of $8500 against the Recovery Fund and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that the Barrs are the Petitioners, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On December 27, 2002, Petitioner served a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on the Barrs and Respondent, contests the payment to the Barrs and the automatic suspension of Petitioner's license. The petition contests the payment of the Barrs' claim and suspension of Petitioner's license because they did not submit a certified copy of the levy and execution documents; their judgment is against Thomson Homes, Inc., and not Petitioner; their judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3633 involves the Joanne Myers. Ms. Myers entered into a construction contract with Thomson Homes, Inc., on February 7, 1999. Pursuant to the agreement, Ms. Myers agreed to pay Thomson Homes, Inc., $29,500 for a lot and $125,400 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour. Ms. Myers directly or indirectly paid Thomson Homes, Inc., $12,840. According to Ms. Myers' claim, Thomson Homes, Inc., never commenced construction before going out of business in August 1999. In an undated complaint bearing no filing date, Ms. Myers commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to completion" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiff's residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen. Ms. Myers obtained a final summary judgment against Thomson Homes, Inc., on May 31, 2000, for a total sum of $28,307.77, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: Subsequent to entering . . . into the above referenced contract, Defendant breached the contract by accepting Plaintiff's deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and/or materialmen for their labor services and materials provided. As a result of Defendant failing to pay lienor's [sic] who provided labor, services and/or materials for the construction of Plaintiff's residence, construction liens were recorded against same, which Plaintiff will have to satisfy. As a result of Defendant abandoning the project, Plaintiff will be compelled to retain a new contractor to complete her home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, failing to pay lienor's [sic], the misapplication of construction funds and financial mismanagement Plaintiff will be forced to borrow additional funds from her construction lender. On September 18, 2000, Ms. Myers filed a claim with the Recovery Fund. In response to a question asking if she had made a diligent effort to collect payment from the contractor, Ms. Myers answered "yes" and explained: "Contractor closed corporate office--would not answer telephone calls." By letter dated November 30, 2000, from James Brogan of WEI Consulting Group to Ms. Myers, Mr. Brogan states that he had investigated the assets of Thomson Homes, Inc. Mr. Brogan found no bankruptcy filing by Thomson Homes, Inc., in the Southern District of Florida. Thomson Homes, Inc., was a party to 282 legal actions and owed tangible personal property taxes on furniture in a model home. On February 28, 2003, Respondent issued an Order approving the payment of Ms. Myers' claim of $14,080.66 against the Recovery Fund and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that Ms. Myers is the Petitioner, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On March 17, 2003, Petitioner filed a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on Ms. Myers and Respondent, contests the payment to Ms. Myers and the automatic suspension of Petitioner's license. The petition contests the payment of Ms. Myers' claim and suspension of Petitioner's license because she did not submit evidence of a diligent search for assets; she did not submit all of the required exhibits; her judgment is against Thomson Homes, Inc., and not Petitioner; her judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. On January 4, 2004, Ms. Myers died. However, the probate court of Lancaster County, Pennsylvania, issued letters testamentary on her estate to James W. Myers III, in whose name Ms. Myers' claim is now being prosecuted. At the hearing, Petitioner contended that most, if not all, of the claims failed because the claimants had not exercised reasonable diligence in searching for assets, although Petitioner has dropped this contention in its proposed recommended order. In his petitions for hearing, Petitioner raised this contention only as to Ms. Myers. Ms. Myers, as well as the remainder of the claimants, made or caused to be made a reasonable search and inquiry for the assets of Thomson Homes, Inc. It is obvious that Thomson Homes, Inc., had no assets by the first letter from Mr. Brogan, dated November 30, 2000, nor did it have assets when Mr. Brogan issued his later letter on June 5, 2001, or when the attorney issued his affidavit on August 9, 2001. What is reasonable, in terms of a search, is dictated here by the fact that Thomson Homes, Inc., had no discoverable assets against which it could be made to answer for the considerable fraud that it perpetrated against these nine claimants. Respondent provided all of the parties, including Petitioner, with notice of its hearings at which it entered Recovery Fund orders. The petitions contend that Petitioner received no such notice in the Whitesides and Deyos cases. Although not litigated at the hearing, the presumption of notice, pursuant to the recitations set forth in each of Respondent's orders, results in a finding that Petitioner received timely notice in all cases.
Recommendation It is RECOMMENDED that Respondent enter a final order dismissing the claims against the Recovery Fund of the Beltzes and Barrs; paying the claims against the Recovery Fund of the remaining claimants, pursuant to the provisions of the orders of Respondent already issued in these cases and pursuant to the provisions of Section 489.143(1)-(6), Florida Statutes; and dismissing Respondent's request for the automatic suspension of Petitioner's license, pursuant to Section 489.143(7), Florida Statutes, without prejudice to any separate disciplinary proceedings that Respondent has commenced or may commence against Petitioner or others for the acts and omissions involved in these nine cases. DONE AND ENTERED this 17th day of February, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 2004. COPIES FURNISHED: Bruce G. Kaleita Law Office of Bruce G. Kaleita, P.A. 1615 Forum Place, Suite 500 West Palm Beach, Florida 33401 Adrienne C. Rodgers Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-1023 Tim Vaccaro, Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nancy Campiglia, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether the Petitioner is entitled to an "in lieu" payment under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 U.S.C. 4622) as implemented by I. M. 80-1-71 and amended by P. M. 81-1.2.
Findings Of Fact Respondent, Florida department of Transportation, because of the proposed widening of State Road 61, Thomasville Road in Tallahassee, Florida, notified Petitioner in the spring of 1974 that the property on which the business was located was to be taken by the Respondent for road purposes. Petitioner was offered, but did not accept, relocation assistance to move his business to another location or to reimburse him in the amount that a never would charge. Other relocation assistance by the Respondent to find sites which would be appropriate for Petitioner's business was offered and four such sites were presented to Petitioner. Petitioner found the sites undesirable and has located a site at which he intends to move his business. Petitioner contends that the location on Thomasville Road is a good location; that he acquires "walk-in" business from time to time; that the sign on the building is of a type consistent with the limited type of advertising available to members of his profession and is beneficial to him; that the building he rents on Thomasville Road has additional space in which he at one time did rent to other interests, but which rental possibilities were foreclosed upon the general public knowledge that the Respondent would widen Thomasville Road and in the process remove the rental building. Petitioner operates his business from the location and shows that the operation of his consultant service is his sole business. The Petitioner filed for in lieu payments after refusing to accept relocation assistance for the moving of his business Petitioner contends: that nothing in the Act states or implies that a displaced person is required to accept relocation assistance if it is economically unsound; that the Respondent failed to sustain the burden of proof that Petitioner is not entitled to "in lieu" payment under the Act. Respondent contends: that the Petitioner failed to show he is entitled to "in lieu" payments under the Act; that the losses such as production costs, rental income, and advertising possibilities are not within the contemplation of the Act.
The Issue The issue in this proceeding is the amount payable to Respondent in satisfaction of Respondent's Medicaid lien from a settlement received by Petitioner from a third party, pursuant to section 409.910(17), Florida Statutes.
Findings Of Fact Petitioner is a 35-year-old female who currently resides in Homestead, Florida. Respondent is the state agency authorized to administer Florida's Medicaid program. § 409.902, Fla. Stat. On or about February 15, 2012, Petitioner was struck by a motor vehicle and severely injured while attempting to rescue her young son, who had run into a busy street in front of her home in Hollywood, Florida. Petitioner suffered a fractured skull and broken leg. She was hospitalized and received medical care for her injuries. Subsequently, she was treated by an orthopedic physician and a neurologist. She estimated that she last received care or treatment from these physicians in August 2013. The Florida Medicaid program paid $35,952.47 in medical assistance benefits on behalf of Petitioner. Petitioner filed a lawsuit against the owners of the vehicle that struck her. On January 11, 2013, Petitioner and the owners of the vehicle that struck Petitioner ("Releasees") entered into a "Release and Hold Harmless Agreement" ("Settlement") under which the Releasees agreed to pay Petitioner $150,000 to settle any and all claims Petitioner had against them. Attached to the Settlement was a document titled "Addendum to Release Signed 1/11/13" ("Addendum"), which allocated liability between Petitioner and the Releasees and provided a commensurate allocation of the Settlement proceeds for past and future medical expense claims. The Addendum stated in pertinent part: The parties agree that a fair assessment of liability is 90% on the Releasor, Mirta B. Agras, and 10% on the Releasees. Furthermore, the parties agree that based upon these injuries, and the serious nature of the injuries suffered by the Releasor, Mirta B. Agras, that $15,000.00 represents a fair allocation of the settlement proceeds for her claim for past and future medical expenses. Petitioner testified that she primarily was at fault in the accident. She acknowledged that the statement in the Addendum that she was 90% at fault for the accident and the Releasees were 10% at fault was an estimate that she formulated entirely on her own, without obtaining any legal or other informed opinion regarding the apportionment of respective fault. Petitioner is not a physician, registered nurse, or licensed practical nurse. There was no evidence presented establishing that she has any medical training or expertise. Thus, there is no professional basis for Petitioner's position that 10% of the Settlement proceeds represents a fair, accurate, or reasonable allocation for her medical expenses. Rather, her position appears to be based on the intent to maximize the Settlement proceeds that are allocated to non-medical expenses, so that she is able to retain a larger portion of the Settlement proceeds. Respondent did not participate in discussions regarding the Settlement or Addendum and was not a party to the Settlement. Petitioner acknowledged that she still receives medical bills related to the injuries she suffered as a result of the accident, and that she still owes money for ambulance transportation and physician treatment. She was unable to recall or estimate the amount she owes. No evidence was presented regarding the actual amount of Petitioner's medical expenses incurred due to her injury. Petitioner has not paid any of her own money for medical treatment, and no entities other than Medicaid have paid for her medical treatment. Since being injured, Petitioner continues to experience medical problems, including pain, dizziness, memory loss, difficulty in walking or standing for extended periods, inability to ride in vehicles for extended periods, balance problems, and difficulty watching television or staring at a computer screen for extended periods. Petitioner claims that, nonetheless, she has not been told that she would need additional medical care or treatment. On or about January 31, 2013, Respondent, through ACS, asserted a Medicaid claim pursuant to section 409.910(17), seeking reimbursement of the $35,952.47 in medical assistance benefits it paid on behalf of Petitioner. Petitioner instead sought to reimburse Respondent $15,000, the amount that Petitioner and Releasees agreed in the Addendum represented a fair allocation of the Settlement proceeds for Petitioner's claim for past and future medical expenses. When Petitioner and Respondent were unable to agree on the amount Petitioner owed Respondent in satisfaction of its Medicaid lien, Petitioner paid ACS the $35,952.47 alleged to be owed Respondent and filed the Petition initiating this proceeding.
The Issue Dr. Mark H. Feldman maintained a practice in podiatry at 1101 West Broward Boulevard, Fort Lauderdale, Florida. A widening and upgrading of Broward Boulevard resulted in a taking of a portion of the building in which Dr. Feldman maintained his practice. Because the widening of this highway was a part of a federal aid project, the doctor became eligible for certain payments to businesses as provided in the manual of Right-of-Way Bureau operating procedures and incorporated by reference into the Florida Administrative Code as Chapter 14-1. The provisions concerning payments to businesses include payment of actual reasonable expenses in moving the business and personal property, direct loss of tangible personal property in moving or discontinuing the business and actual reasonable expenses in searching for a replacement business. Further, in lieu of payment for actual moving and losses as indicated above, a fixed payment may be paid. Dr. Feldman applied for a fixed payment and was denied by the Department of Transportation. The Department of Transportation based its denial on two grounds: Dr. Feldman had already received payments for reasonable expenses, direct less of personal property and discontinuing his business, and for search of a replacement business site; and Dr. Feldman was ineligible for a fixed payment because the doctor maintained a commercial enterprise with more than one establishment, which was not being acquired by the State or the United States and was engaged in the same or similar business. Dr. Feldman asserted that he accepted payment because of the representation of employees of the Department and that he did not maintain two (2) business locations.
Findings Of Fact Dr. Mark H. Feldman maintained a practice in podiatry at 1101 West Broward Boulevard in Fort Lauderdale, Florida. A portion of the building in which Dr. Feldman maintained his practice was taken by the State under a construction project, which was partially federally funded, to widen Broward Boulevard. As a result of this taking, it was necessary for Dr. Feldman to move his practice. Dr. Feldman became eligible for certain payments to businesses required to move because of such construction. Dr. Feldman asserted that prior to receipt of the Department's notice, he engaged in discussions with representatives of the Department regarding his options. Dr. Feldman requested consideration for fixed payment in lieu of actual moving expenses, which resulted in a preliminary investigation by the Department of Transportation. This investigation revealed that in addition to maintenance of his practice at 1101 West Broward Boulevard. Dr. Feldman also was listed in the telephone directory and in the building directory as maintaining offices at 7301 North University Drive, Tamarack, Florida. This second location was not affected by any taking. Based upon this information, the Department made a determination that the doctor was not eligible for fixed payment in lieu of actual moving expenses because Dr. Feldman's business affected by the taking was part of a commercial enterprise having at least one other establishment which was not being acquired by the State or the United States and which was engaged in the same or similar business. See Right-of-Way Bureau Operating Procedures Manual, 4.3.7E(1)(b). Based upon this initial denial, and having received notice that he could only be guaranteed 90 days' occupancy, Dr. Feldman applied for actual expenses, which were paid. Thereafter, Dr. Feldman submitted his application for fixed payment in lieu of actual moving expenses, which was denied on the basis that he had received actual moving expenses. Approximately one year prior to the announcement by the Department of the incipient taking of the property of 1101 West Broward Boulevard, Dr. Feldman had been in practice with another podiatrist, Harry Westridge. Dr. Westridge originally maintained his practice at 1101 West Broward Boulevard. Dr. Westridge had joined Dr. Feldman's practice at 7301 North University Drive in Tamarack several years ago. In April of 1977, Dr. Westridge purchased Dr. Feldman's practice at North University Drive. As a part of their agreement, Dr. Feldman took over the lease and personal property located at 1101 West Broward Boulevard. Further, as a part of their agreement, Dr. Feldman agreed to permit Dr. Westridge to utilize his name in conjunction with the Tamarack practice. Both doctors explained that this was because Dr. Westridge was a newcomer to the area and was purchasing the "good will" in Dr. Feldman's practice, and it protected Dr. Feldman's investment if Dr. Westridge was unable to meet his obligations under the purchase agreement. However, both doctors testified that subsequent to Dr. Westridge's purchase of the practice Dr. Feldman did not maintain regular office hours at the Tamarack address, did not regularly see patients at the Tamarack address, and had seen approximately twelve (12) patients at the Tamarack address between April of 1977, and April of 1978. This included consultations and referrals to Dr. Feldman by Dr. Westridge. The nature of his surgical practice in podiatry prevented Dr. Feldman from waiting to move his practice until the Department of Transportation took his property where he was located. Further, Dr. Feldman could not afford to move his practice without assistance. Dr. Feldman only applied for payment of his actual expenses, which he received, when he was initially told he did not qualify for in-lieu of payment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of Transportation pay Dr. Feldman a fixed payment in lieu of actual expenses and offset any amounts paid to Dr. Feldman against the fixed payment. DONE and ORDERED this 2nd day of November, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Dr. Mark H. Feldman 6468 Racket Club Drive Lauderhill, Florida 33319 =================================================================
Findings Of Fact Petitioner is engaged in the business of interior design and space planning of residential and commercial structures. In conjunction with these activities, Petitioner also manufactures furniture and cabinets. In 1986, prior to relocation to the present business site, Petitioner's facilities in Davie, Florida, included a kitchen, business offices, manufacturing room and bathroom. In the rear of the building, Petitioner maintained a spray room for the painting of furniture. In June or July of 1986, Petitioner was required to relocate to Pompano Beach, Florida, as the result of a public taking of the property where it was previously situated for the construction of interstate highway 595 in Broward County, Florida. The parties stipulated at hearing that Petitioner is an eligible displacee under the federal government's Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. Respondent administers the Act using federal law interpretations. Respondent also administers a corresponding state relocation aid program established by state law. Rules governing the state program are almost a verbatim duplicate of the federal program. Chapter 4 of Respondent's right-of-way procedures manual, comprised of state rules governing nonfederal relocation assistance, has been adopted by reference by Respondent as a formal administrative rule. Both federal and state rules are used in administration of federal relocation aid projects. Common requirements of the two sets of rules are given the same interpretations by Respondent. Petitioner was previously reimbursed by Respondent for various expenses related to relocation. Respondent denied reimbursement for Petitioner's expenses related to telephone "yellow page" advertising, consultant and legal fees, installation of an exhaust fan system, and the time Petitioner's employees spent meeting with officials regarding relocation. Petitioner's primary source of advertising in the previous location was the telephone directory yellow pages. Petitioner had run the advertisement in the yellow pages for approximately 10 years. The advertisement was paid for monthly by Petitioner. While cancellation for the remaining period of time on the advertisement contract was possible at the time of Petitioner's relocation, Petitioner did not cancel the contract since a call forwarding service was provided by the telephone company. This service informed callers at Petitioner's previous telephone number of the number at the new location. Since Petitioner continued using this telephone directory advertisement for the completed 12 month term of the contract, Respondent denied Petitioner's request for reimbursement of approximately $1,324 or 10 monthly payments of $132.40. Respondent's denial was based on the benefit Petitioner obtained from the telephone call message service providing potential customers with Petitioner's new number and federal regulations prohibiting reimbursement for additional operating expenses incurred because of operating in a new location. Respondent's employee informed Petitioner that the cost of "hooking up" extensive duct work from the spray paint booth at the new location to an exhaust fan would be reimbursed by Respondent. The original exhaust fan employed in Petitioner's operation at the previous location had consisted of a portable fan on a movable dolly with a three to four-foot vent pipe which allowed toxic fumes to be blown out of the rear door of the facility. The new facility location did not offer such a convenience for ventilation. Further, local ordinances and regulations prevented use of Petitioner's former exhaust system. Instead, Petitioner was required to acquire a new exhaust apparatus. The new equipment consisted of a ventilation fan which had to be permanently attached to the outside of the roof of the facility. Ductwork measuring 6 to 7 feet in length was connected to the fan through an opening cut into the roof. The ductwork extended into the building's interior spray booth from the roof. Petitioner sought reimbursement of $385 for a flange fitting necessary to connect the ductwork to the booth. Petitioner also sought reimbursement in the amount of $460 for an offset fitting used to line up the ductwork with structural aspects of the roof, and $525 for labor costs associated with connection of the ductwork. Respondent denied reimbursement of the entire amount of $1,370 on the basis that such a larger, more modern and comprehensive exhaust system constituted a building improvement and was not permitted under applicable regulations governing either federal and state relocation programs. Petitioner's vice president is Sherry Parrish. Ms. Parrish was employed by Petitioner as a consultant to design a front or display area in the new facility. Among other consultant duties, she evaluated and selected an improved telephone system, wall coverings, carpet and linoleum for the new location. Petitioner had previously utilized the services of its president, Jerry Parrish, as a consultant regarding layout of manufacturing space located at the rear of the new facility. Petitioner's payment to Mr. Parrish of approximately $2,000 for this service was previously reimbursed by Respondent. Petitioner's claim for reimbursement of $1,035 paid to Ms. Parrish for this purpose was denied by Respondent on the basis that the building at the new location was unfinished. Federal and state regulations governing reimbursement for such expenses require that the building which is the subject of relocation be an "existing structure" that is already built, finished and completed. The building had been issued a certificate of occupancy in accordance with local governmental regulations prior to Petitioner's move to the premises. Petitioner hired an attorney to draft a lease in response to the lease proffered by Petitioner's future landlord at the new location facility. Petitioner was charged $1,180 by the attorney for this service. The attorney also provided petitioner with consultation services regarding certain relocation sites and the relative commercial advantages and disadvantages of each site. On a professional basis, the attorney has provided this consultative service to a number of other small businesses. The amount of the attorney's consultation fee for this service to Petitioner was $2,405. Respondent, considering the attorney's services to be of a legal nature, denied all expense reimbursement related to these charges on the basis that reimbursement for legal fees is not permitted by federal or state regulations. Petitioner sought reimbursement for the time spent by its officers in conferences with Respondent's representatives regarding Petitioner's relocation. Conferences were generally held at the Petitioner's facility or by telephone. Petitioner's request for reimbursement of a total of $1,200 for this alleged loss of employee time was denied by Respondent on the basis that regulations did not permit reimbursement for time spent determining claims or claim eligibility. Petitioner was previously paid $1,000 by Respondent to cover the cost of search expenses incurred in looking for relocation sites. The initial property which Petitioner decided upon as a site for relocation became unavailable as a result of the progress of condemnation action involving Petitioner's old location. Petitioner undertook a second and successful search to find a suitable relocation site. Petitioner's request for reimbursement of an additional $1,500 for expenses related to the second search was denied by Respondent. Respondent noted that rules governing federal and state relocation expense reimbursement limit search expenses to $1,000.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered awarding Petitioner reimbursement for consultative fees paid to Sherry Parrish in the amount of $1,035 as an eligible relocation expense and denying all other claims for reimbursement. DONE AND ENTERED this 5th day of October, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 1988. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings 1-6. Addressed. 7-10. Unnecessary to result reached. 11. Addressed. 12-14. Unnecessary to result reached. 15-16. Not supported by weight of the evidence. Corroborative only of self-serving assertion; hearsay. Addressed. Unnecessary to result reached. Also, facts evidence that payment by was to be for the "unused portion" of which there was none. Not supported by weight of the evidence. 21-28. Addressed; some portions unnecessary to result on this issue. 29-35. Addressed; some portions unnecessary to result reached. 36-41. Addressed; some portions unnecessary to result reached. 42. -49. Addressed in part; remainder unnecessary to result reached. 50-51. Addressed in part; remainder unnecessary for result reached. 52-53. Addressed in part; remainder rejected as legal conclusion unsupported by the evidence. Respondent's Proposed Findings 1-9. Addressed in part; remainder unnecessary to result. 10-16. Addressed. Addressed. Rejected; Hearsay. 19-24. Addressed. 25-26. Addressed in part; remainder unnecessary to result. Weight of the evidence does not support that the building was unfinished. Addressed. 29-33. Addressed. 34-41. Addressed in part; remainder unnecessary to result. COPIES FURNISHED: Charles Gardner, Esquire Haydon Burns Building 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Douglas Reynolds, Esquire 499 Northwest 70 Avenue Suite 220 Fort Lauderdale, Florida 33317-2443 Thomas H. Bateman, III, Esquire General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450 Hon. Kaye N. Henderson Secretary Haydon Burns Building Attn: Eleanor F. Turner, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue The issue in this proceeding is whether Petitioner is entitled to attorney’s fees and costs.
Findings Of Fact This case was filed by Petitioner on behalf of Ida Heaps pursuant to Section 760.35, Florida Statutes. The case alleged that Respondent discriminated against Petitioner, Heaps, based on race when Respondent did not lease a home to Petitioner Heaps. On July 22, 2004, in Tavares, Florida, a one-day hearing was held after which post-hearing recommended orders were filed. Based on the evidence a Recommended Order finding Respondent guilty of a discriminatory housing practice against Ms. Heaps in violation of Section 760.23(1), Florida Statutes, was entered on February 1, 2005. Petitioner was therefore the prevailing party in this matter. The Recommended Order also found that Petitioner was entitled to attorney’s fees and costs; and reserved jurisdiction to determine the amount of fees and costs in the event the parties were unable to agree on such an award. On January 31, 2005, the Commission issued its Final Order approving the Recommended Order. The time limit for appealing the Final Order has passed. Petitioner has not been able to resolve the amount of fees and costs incurred in this matter. As evidence of the amount of attorney’s fees, Petitioner, FCHR, submitted an affidavit outlining the hours and costs spent incurred in the underlying case by its attorney. The requested fees are limited to hours expended on Petitioner’s behalf in DOAH Case No. 04-1593, including time spent in travel and establishing a right to attorney’s fees and costs. Petitioner’s attorney spent a total of 53 hours on this case, which include 46 hours for legal services and seven hours for travel. The hours multiplied by the reasonable rate results in a total of $14,850.00 for attorney’s fees. The Commission’s direct costs total $453.70, which include the travel costs of Petitioner’s attorney and investigator to attend the hearing and the court reporter’s fee. The time spent on this case by the Petitioner’s attorney was reviewed by an outside expert. The expert has found the time to be reasonable and has recommended a reasonable hourly rate, arrived at independently of the Commission and its attorneys and without direction by Petitioner, based on the nature, novelty and complexity of the case, and the expertise of the Petitioner’s attorney in federal and Florida administrative and anti-discrimination law. The expert opined that a rate of $300.00 per hour legal services and $150.00 per hour for travel was reasonable. Respondent did not challenge the affidavit of Petitioner’s or the expert’s opinion. The amount of hours and costs reflected in the affidavit are reasonable for this type of case. Likewise, the hourly fees for such litigation are reasonable for this type of case and the long experience of Petitioner’s attorney. Therefore, Petitioner, FCHR, is entitled to an award of attorney’s fees and costs in the amount of $15,303.70.
The Issue The issue for consideration in this case is whether the Department’s termination of its lease of the Petitioner’s property located at 36555 U.S. Highway 19 North, in Palm Harbor, Florida was proper and consistent with the terms of the lease
Findings Of Fact At all times pertinent to the issues herein, the Department of Health and Rehabilitation Services, (now the Department of Children and Families), (Department), through its District V offices, (District), was the state agency responsible for the provision and administration of aging and adult services and adult payments in certain state programs for the elderly, and others, in the geographical area of the state known as District V, which includes Pinellas and Pasco Counties. On or about June 1990, the Department entered into a lease agreement with Petitioner, Joseph DiGerlando, for 5,723 square feet of office space in a building owned by Petitioner and located at 36555 U.S. Highway 19 North in Palm Harbor, Florida. The term of the least was ten years. It commenced on July 13, 1990, and expired on July 12, 2000. The leased space was to be used by staff of the Economic Services and Adult Payments programs from whose funds the lease payments were to be made. Paragraph XVIII of the lease, entitled Availability of Funds, provides: “the obligations of the Lessee under this lease agreement are subject to the availability of funds lawfully appropriated annually for its purposed by the legislature if the State of Florida and/or the availability of funds through contract or grant programs. The terms of the addendum to the lease provide that the rental cost per square foot for the first year of the least is $13.50, and the cost increases each year throughout the term of the least until the last year thereof when it reaches $22.81 per square foot. Rent payments became due and were paid each year subsequent to the initiation of the lease according to the above provision. However, the general Appropriations Act passed by the Florida Legislature for fiscal year 1996-1997 reduced the Department’s budget by $27,127,606 and cut 400 full time positions from the Department’s employment rolls. When these reductions were apportioned within the Department, a reduction of 300 positions and of $9,243,900 was allocated to the statewide budget for Economic Services and Adult Payments. Of the dollar amount reduced, 50% constituted general revenue funds and 50% constituted trust funds. This statewide reduction resulted in the reduction of the salary and expense budget for District V by $1,263,333 and the elimination of 41 personnel positions. The language contained in the 1996-1997 General Appropriations Act and Summary Statement of Intent which brought about the funds reduction responsible for the termination, authorized the Department to allocate the reduction consistent with statute, but mandated that “adjustments related to the distribution shall recognize efficient and effective management, and shall minimize disruption of services to clients. In short, the Department was to evaluate its operation and make choices which were consistent both with sound economic management, but which also generated as little disruption to the provision of services to the Department’s clients as was possible. Consistent with the instructions received by it, the Department prepared a budget amendment utilizing the legislatively-mandated methodology for reduction reallocation. This amendment sub submitted for review tot he Governor's Office of Planning and Budgeting; sent for the fourteen-day legislative review; and scheduled for presentation tot he Administrative Commission at its July 23, 1996 meeting. The Administration Commission approved the Department's budget amendment and it was signed off on by the Governor's Planning and Budgeting office the day it was presented, July 23, 1996. No written objections to the budget amendment were entered during the fourteen-day review and it was subsequently implemented within the Department and reflected on the approved operating budget for each program. Based on the amended operating budget for Economic Services, meetings were held to identify and evaluate any possible surpluses or deficits within each program under the management of Economic Services. A spending plan meeting was held in September 1996 at which it was determined that District V's Economic Services program was projecting a deficit of $221.305.00 of which $161,280.00 was directly related to the 41 positions cut as the District's portion of the overall 300 positions cut from Economic Services statewide by the legislature. The balance of the deficit figure resulted from other funding reductions imposed by the legislature. The previous year, 1995-1996, District V's Economic Services budget was reduced by only $7,988, significantly less than the cut mandated by the legislature for 1996-1997. At that same September 1996 spending plan meeting, the District's Adult Payments budget was projected to experience a deficit of $52,333.00. When the combined deficit for the Economic Services and Adult Payments programs was considered, it became necessary to examine what options were available to compensate for the shortfall. One of the options considered included an examination of property leases to which the District was committed. Included among these was the instant lease of Petitioner's Palm Harbor property. Other options included a diversion of funds from one account to another, but this option was limited because of the reduction in salary funds available due to the position cuts mandated by the legislature. The District's budgetary flexibility for fiscal year 1996-1997 was even more restricted as a result of legislative budget reductions in other programs within the Department such as children and families, alcohol, drug abuse, and mental health and developmental services. To even further complicate matters, the Department was split into two agencies with the creation of the Department of Health. When the Department needs office or program space, agency policy has been to lease it in the geographic area where the service will be performed for the majority of the clients receiving it. When the Palm Harbor service center was opened in 1990, the Department had sufficient funds to support the expansion to that area. The closure of that site was the result of a management decision taken to reduce the deficit in the Economic Services and Adult Payments programs caused by the legislative cuts in the Department's funding and staffing. 13 That decision was consistent with the language contained in the appropriations bill. since that service center serviced the smallest percentage of the Department's clients (3.6%) yet had the highest lease rate in Pinellas County, especially in light of the fact that the clients served there could receive services, with a minimum of disruption, from nearby service centers operated by District V in Clearwater and New Port Richey. Lease terminations were not the only actions taken to reduce expenditures, however. Other cost savings measures were adopted by the District to reduce the deficit. These included a freeze on hiring to fill vacant positions, a reduction in contracted security guard services, cancellation of training programs contracted to private providers, a reduction in personnel travel and a reduction in the purchase of supplies and equipment replacement. Supplies and equipment were moved about within the District from areas of surplus to areas of need. Consistent with the deficit reductions efforts described and the agency policy deemed pertinent to the situation, by letter dated October 21, 1996, the Department terminated its lease of Petitioner's Palm Harbor property effective December 12, 1996. Petitioner points out that the monthly rental payment for the property for the period from July 13, 1996 to July 12, 1997 is $9,132.95 and, therefore, the total rental due on the property from the date of termination, December 12, 1996, to the end of the 1996-1997 fiscal year, June 30, 1997, is slightly in excess of $60,000.00. For the 1996-1997 fiscal year, the legislature appropriated approximately $145,000,000.00 for District V. The 1996-1997 General Appropriations Acts and Summary Statement of Intent appropriates $53,807,327.00 for expenses for Economic Services and $5,193,156.00 for Adult Payments expenses. The lease payments on the Petitioner's property were treated by District as expenses to the Economic Services and Adult Payments programs. Petitioner also argues that the Department could point to no law, statute or other legislative act which prohibits the Department from spending appropriated funds to pay the rental costs of this lease or on any other expenditure category which would include this lease. He urges that even after the Department's allocation by district of the expense funds for Economic Services and Adult Payments, the expense budget for this district in those programs amounted to $2,809,267.00 and $427,091.00, respectively. This, he claims is more than enough to pay the rent on his lease. The 1996-1997 appropriations act specifically provided that reductions be targeted to administrative rather than client services. The leased space in issue here was used to provide client services in the two major programs discussed here. Lease payments for a service center are generally considered program costs, not administrative costs, and, Petitioner alleges, not the type of expense to which the legislature intended these reductions to apply. The Department chose the split between salary and other expenses in reaction to the mandated 400 personnel and the $27 million reductions. Whether a reduction in budgeted expense costs would affect lease costs was left up to each District. Florida law permits Department District Administrators to transfer up to 10% of the total District budget with approval of the Department Secretary. Petitioner asserts there were sufficient funds in the Economic Services and Adult Payments programs for 1996-1997 to pay for the instant lease if the District Administrator had chosen to do so. The salaries and benefits expense budgeted for District V by the Department pertaining to the Economic Services and Adult payments programs was more than $12 million and more than $2 million respectively
Recommendation Based on the foregoing Finding of Fact and Conclusions of Law, it is recommended that the Department of Children and Familes enter a final order dismissing Petitioner's protest of its action terminating the lease of his property in Palm Harbor. DONE and ENTERED this 14th day of March, 1997, in Tallahassee, Florida ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 1997 COPIES FURNISHED: Nelson D. Blank, Esquire Rachelle Desvaux-Bedke, Esquire Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullis, P.A. 2700 Barnett Place 101 East Kennedy Boulevard Tampa, Florida 33601-1102 Frank H. Nagatani, Esquire Kathleen R. Harvey, Esquire Department of Health and Rehabilitative Services 11351 Ulmerton Road, Suite 100 Largo, Florida 33778-1630 Gregory Venz Agency Clerk Department of Children and Families 1317 Winewood Boulevard Tallahassee, Florida 32399-700 Richard A. Doran General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Petitioners are Dennis Coulter; J. Larry Hooper; L.C. Dairy, Inc. (hereinafter referred to as "L.C. Dairy"); and Wabasso Road Dairy, Inc. (hereinafter referred to as "Wabasso"). L.C. Dairy is a closely held Florida corporation. Mr. Coulter owns 50 percent of the stock of L.C. Dairy. Mr. Coulter also serves as L.C. Dairy's President. Wabasso is a closely held Florida corporation. Mr. Coulter and Mr. Hooper are officers and directors of Wabasso. Mr. Coulter and Mr. Hooper are, together, the majority stockholders of Wabasso. Between 1988 and 1997, Petitioners operated a dairy known as Willowbrook Farms Dairy, which consisted of approximately 2,000 cattle (hereinafter referred to as the "Dairy"). The Dairy was operated on property owned by Willowbrook Coal Company, d/b/a Willowbrook Farms (hereinafter referred to as "Willowbrook"). Willowbrook is a Pennsylvania general partnership. Mr. James Sartori is the general partner of Willowbrook. Willowbrook owned two adjacent parcels of property located in Brevard County, Florida. One parcel was used by Petitioners for the Dairy (hereinafter referred to as the "Dairy Parcel"). The other parcel, located to the west of the Dairy Parcel, was not directly used for grazing dairy cattle (hereinafter referred to as the "Non-Diary Parcel"). Respondent, St. Johns River Water Management District (hereinafter referred to as the "District"), is a public corporation with regulatory jurisdiction over the administration and enforcement of surface water management systems. On August 13, 1997, the District entered into an Agreement of Purchase and Sale with Willowbrook whereby the District acquired a conservation easement over the Dairy Parcel and acquired the Non-Dairy Parcel in fee (hereinafter referred to as the "Sales Agreement"). The Sales Agreement specifically provided that all cattle on the Dairy Parcel and the Non-Dairy Parcel had to be removed prior to closing. The terms of the Diary Parcel conservation easement also provided that concentrated animal feeding operations, including dairy operations, were prohibited. The total agreed purchase price for the fee interest in the Non-Dairy Parcel and the easement over the Dairy Parcel was $11,500,000.00. While the Sales Agreement was being negotiated by the District, the District was also negotiating with the National Resource Conservation Service (hereinafter referred to as the "NRCS") of the United States Department of Agriculture (hereinafter referred to as the "USDA") to sell a 30-year conservation easement over the Non-Dairy Parcel to the USDA. USDA was interested in purchasing the easement as part of a federally funded program known as the Wetlands Reserve Program. The USDA ultimately agreed to purchase a conservation easement over the Non-Dairy Parcel from the District for $4,200,000.00. This agreement was reached before closing on the Sales Agreement. No agreement was made between the District and the USDA specifying that the District would provide relocation assistance to any persons displaced as a result of the USDA's purchase of a conservation easement over the Non-Dairy Parcel. The Sales Agreement contained the following contingency: (B) This Agreement is contingent on Buyer entering into an Agreement with the United States of America for funding of a portion of the purchase price of the Conservation Easement for the Restrictions Parcel [the Non-Dairy Parcel] through the Wetlands Reserve Program of the Commodity Credit Corporation. On March 26, 1998, the USDA wired $4,200,000.00 to the District's Land Acquisition Revenue Bonds Project Funds Account. These funds were intended to be used for USDA's purchase of the conservation easement over the Non-Dairy Parcel. Closing on the Sales Agreement took place on March 30, 1998. Closing was initially held for the District's purchase of the fee interest in the Non-Dairy Parcel and the purchase of the conservation easement over the Dairy Parcel. Immediately after the completion of District's closing, a second closing was held on the purchase of the conservation easement over the Non-Dairy Parcel by the USDA. Disbursement of all purchase funds, including the $4,200,000.00 remitted by the USDA to the District and $7,300,000.00 in District funds, took place on March 31, 1998. The net result of the closings on the Sales Agreement was that the District purchased a conservation easement over the Dairy Parcel and the underlying fee interest in the Non-Dairy Parcel for $7,300,000.00 and the USDA purchased a conservation easement over the Non-Dairy Parcel from the District for $4,200,000.00. Pursuant to the terms of the Sales Agreement Petitioners were required to relocate their dairy operations. They incurred substantial costs in doing so. On or about April 9, 1998, Petitioners requested relocation assistance under the "Uniform Relocation Assistance and Real Property Acquisition Policies Act" 42 U.S.C. Sections 4601 et seq. (hereinafter referred to as the "Relocation Assistance Act"), and Section 421.55, Florida Statutes, from the District. By letter dated May 8, 1998, the District informed Petitioners that their request for relocation assistance was denied. On or about June 22, 1998, Petitioners filed a Petition for Formal Administrative Hearing with the District challenging the denial of their request for relocation assistance. The Petition was filed by the District with the Division of Administrative Hearings by Notice filed July 14, 1998.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the St. Johns River Water Management District denying Petitioners request for relocation assistance pursuant to the Relocation Assistance Act and Section 421.55, Florida Statutes. DONE AND ENTERED this 10th day of September, 1999, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1999. COPIES FURNISHED: Kenneth G. Oertel, Esquire Oertel, Hoffman, Fernandez & Cole, P.A. Post Office Box 1110 Tallahassee, Florida 32302-1110 John W. Williams, Esquire Stanley J. Niego, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Dykes C. Everett, Esquire Robert P. Major, Esquire Winderweedle, Haines, Ward and Woodman, P.A. 1500 NationsBank Center 390 North Orange Avenue Orlando, Florida 32801 Henry Dean, Executive Director St. Johns Water River Management District Highway 100, West Post Office Box 1429 Palatka, Florida 32178-1429
